Halifax Personal Injury Lawyer Blog

Darrel Dexter’s NDP Government pledged to remove the unfair $2,500.00 cap on compensation for motor vehicle accident victims who have suffered a “minor injury”.

Constitutional Challenge Unsuccessful

A constitutional challenge was filed against the legislation arguing that the cap of $2,500.00 for persons who have supposedly suffered a minor injury was contrary to the Charter of Rights and Freedoms. The constitutional challenge failed at both the trial level and the Nova Scotia Court of Appeal. Leave to appeal to the Supreme Court of Canada has been filed.

Requesting Public Feedback

Now the NDP Government has released a position paper requesting input from the public. The minor injury cap was introduced because insurance companies claimed they were losing money on automobile insurance claims.

However, evidence presented to the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal confirms the insurance industry was making record profits at the time the minor injury cap legislation was introduced.

Is the Cap Fair?

So what do you think? Is the cap of $2,500.00 for pain and suffering for persons who have suffered an injury in a motor vehicle accident fair?

Your comments can be sent to:

The Office of the Superintendent of Insurance
PO Box 2271
4th Floor
Provincial Finance Building
1723 Hollis Street
Halifax, NS B3J 3C8

Submissions must be received by February 15, 2010.

Please contact the Premier to voice your support for the government’s plan to repeal the minor injury cap. You can contact his office here or

Telephone: 902-424-6600
Fax: 902-424-7648
Toll-free Message Line: 1-800-267-1993
E-mail Address: premier@gov.ns.ca
Address:
Office of the Premier
PO Box 726
Halifax, Nova Scotia
B3J 2T3.

Further Reading

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Nova Scotia Personal Injury Claims: “Minor Injury” Compensation Cap Constitutional

Continue reading "NDP Requests Public Input Regarding “Minor Injury” Compensation Cap" »

Defence Lawyers on Facebook

Everybody seems to be interested in Facebook, Twitter and all the other social media networks these days. That includes lawyers who represent insurance companies. There have been a series of cases across Canada where lawyers for insurance companies have demanded production of plaintiffs' Facebook pages in order to use the information against the plaintiff.

Depressed Victim Looked Too Happy

In a recent case in Quebec, Nathalie Blanchard was on disability for depression. She had her benefits terminated because her insurance company, Manulife found pictures on her Facebook page where she was smiling and looking like she was having a good time. In other words, she didn’t look depressed so the insurance company cut off her benefits.

Blanchard is now suing Manulife to reinstate her disability benefits.

In New Brunswick the Court of The Queens Bench recently ordered a plaintiff to produce the contents of her Facebook page to the lawyers representing the defendant’s insurance company.

Online Information Must be Disclosed?

Court rules in each province require the parties to disclose any information they have that may be relevant to the matters at issue in litigation. This now includes any electronic information in possession of the parties. While this commonly refers to things like e-mail or digital documents, the courts have been extending the reach of this disclosure obligation to include online information.

In Leduc v. Roman the Ontario Court required the plaintiff to produce information from a “private” Facebook account. The judge in that decision stated:

“It is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on a party’s facebook profile may be relevant to the allegations made in the pleading.”

Facebook May Be Used For Cross Examination

In a recent case in Newfoundland, Terry v. Mullowney, the lawyer for the defendants used excerpts from the plaintiff’s facebook page to cross examine the plaintiff about his social life.

The judge commented on the use of this information:

“While not getting into the details of the excepts, they convince me that Mr. Terry (at least in the few months prior to his testimony in court) recorded on facebook had a rather full and active social life…I find it incredible that Mr. Terry’s social life miraculously improved in the few months he was communicating on facebook and that for the remainder of the time from 2001 to 2007 he essentially had little or no social life. Without this evidence I would have been left with a very different impression of Mr. Terry’s social life.”

Disclosure Obligations Extend Online

So in the future you can expect parties in litigation to demand complete disclosure of Facebook pages, Linkedin profiles, Twitter accounts and public Blogs. In short, any information that you post online can and may be used against you. Beware.

Continue reading "Facebook Being Used Against Personal Injury Victims" »

Lawyer Fees Generally

Usually lawyers are paid an hourly rate for the time they spend working on behalf of the claim. For the most part, the hourly rate changed by lawyers increases depending on the lawyer’s experience and, in particular, the lawyer’s experience in the particular field in which he is being retained.

Time = Money

Abraham Lincoln once said, "A lawyer's time and advice is his stock in trade." In essence, asking a lawyer for his or her advice is no different than asking an accountant to do your taxes, or hiring an electrician to fix the wiring in your home.

However, some people are under the impression that calling a lawyer and asking a question is free. Most lawyers will answer preliminary questions regarding a legal matter at no charge, but when it is determined a lawyer is needed, a fee contract is required.

The amount of time that a lawyer will spend on any particular case will vary by lawyer and by case. Just as no two cases are the same, the work habits, productivity or the approach deemed best to a particular case, are not going to be the same from one lawyer to another.

What's a Contingency Fee?

In some cases, a lawyer may accept a case on the basis of what is generally known as a contingency fee agreement. Given the tremendous cost of litigation, most of my clients are simply not in a position to be able to financially afford to pay my hourly rate on a month by month basis.

Contingency Fees Allow Access to Justice

A contingency fee contract has been referred to as the "poor man's key to the courthouse" because many persons who are in need of a lawyer cannot afford the significant costs of litigation at the lawyers normal hourly rate.

At Arnold Pizzo McKiggan we are pleased to be able to offer our client’s the option of contingency fee contracts in appropriate cases. However, we go one step further.

Client Choice Legal Fee Program

There are some cases where a percentage fee may not be appropriate. For example, in a case where the insurance company has already made you an offer, you may want to pay the lawyer on an hourly rate basis and perhaps save tens of thousands of dollars in the process!

This is why we developed the innovative Client Choice Legal Fee Program for personal injury claims.

If you live in Atlantic Canada and have a serious personal injury claim and you think you require the services of a lawyer, you can call us for more details of our Client Choice Legal Fee Program

Continue reading "Lawyer Fees: How To Hire a Personal Injury Lawyer" »

Direct Liability

The term vicarious liability comes up in personal injury claims frequently. In most cases, your claim will be against the person who directly caused your injuries. For example, if you are run over by a car while walking in a cross walk, you can sue the driver of the car who may be found directly liable (at fault) for your injuries.

Vicarious Liability

On the other hand, in some cases someone else may be liable (responsible) for compensating you for your injuries. This issue typically comes up in cases of employees who do something wrong during the course of their employment.

In the Course of Employment

The law has generally held that the employer will be vicariously liable (responsible) for any wrongful acts committed by an employee while the employee was acting in the general course of their duties.

So to take our care accident example, if you were run over by someone driving a car you might sue the driver who could be found directly liable. However, if the person is driving a delivery truck you may also sue the delivery company that owned the truck and employed the driver.

Vicarious Liability Important to Ensure Justice

The ability to hold an employer vicariously liable for the wrongful acts of employees is important because it encourages employers to properly supervise their employees to ensure that are performing their job duties in a safe and careful fashion. It is also important in the case of catastrophic personal injury claims where an individual defendant may not have sufficient insurance or assets to fully compensate the injured person. Being able to pursue the defendant’s employer means that there is another source of funds available to help pay the plaintiff’s personal injury claim.

Continue reading "What is “Vicarious Liability”? Halifax Personal Injury Lawyer Explains" »

I noticed an interesting story in the latest newsletter from the Brain Injury Association of Canada

Hockey Helmets Mandatory for All Skaters

Dalhousie's Memorial Arena is introducing a new rule that comes into effect January 1, 2010 that will require all skaters to wear CSA-approved hockey helmets during all skating sessions held at Dalhousie.

Skating More Dangerous than Bicycling or Skateboarding

Under Nova Scotia's Motor Vehicle Act, wearing a helmet is mandatory for biclists, skateboarders and in-line skaters. But there is no law that requires skaters to wear helmets.

But studies have shown that ice skating produces three times more head injuries than cycling, skateboarding or inline skating.

Ice skating is particularly dangerous because when a person loses his or her balance on ice, there is often impact of the head directly on the hard surface.

Helmets Just "Common Sense"

Dr. David B. Clarke, is a Dalhousie professor and one of the leading neurosurgeons in the province. he was quoted as saying:

“Wearing a helmet while skating in order to protect your brain is supported by research and also just makes common sense. We want people to enjoy this wonderful activity and, at the same time, we want people to protect their brains. I am delighted that Dalhousie is taking a leadership role on this issue...”

Kathie Wheadon-Hore, Senior Manager, Facility Operations for Dalhousie’s Department of Athletics and Recreational Services said:

“We have to do this. Even if this helps save one person, if it helps save one of our students, then it’s worth it in my opinion.”

I suspect the rule change may be unpopular with the students and public that use Memorial Arena. But as a Brain Injury Lawyer, I have seen first hand the devastating effects that brain injuries can have and I applaud Dalhousie for it's progressive approach to head injury prevention.

So what do you think? Is the helmet rule a good idea?

Continue reading "Mandatory Helmets for Recreational Ice Skaters: Brain Injury Prevention" »

Whirlwind Week for Auto Accident Victims

It’s been quite a week for anyone interested in Nova Scotia’s automobile insurance minor injury cap.

Court of Appeal Decision

On Tuesday Chief Justice MacDonald released the Court of Appeal’s decision in Hartling v. Nova Scotia.

The Plaintiffs filed a constitutional challenge against Nova Scotia’s automobile insurance law which places a monetary cap of $2,500.00 on the compensation that injured car accident victims are entitled to receive for their pain and suffering.

Recap

During the original hearing, Justice Walter Goodfellow ruled that the legislation was not discriminatory and did not violate the Charter of Rights and Freedoms.

Nova Scotia Personal Injury Claims: “Minor Injury” Compensation Cap Constitutional

Justice Goodfellow released a second part to his decision where he determined that, if the legislation was discriminatory, the benefits of the legislation were not sufficient to justify the discrimination.

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Hope For Accident Victims

The decision offered hope to accident victims who felt that the Court of Appeal might give greater weight to the evidence of the adverse effects of the cap legislation.

Court of Appeal Dismisses Accident Victim’s Appeal

This week the Court of Appeal dashed the hopes of accident victims who have been told that the injuries they have suffered are minor and that compensation for pain is caped at $2500.00

Court of Appeal Agrees Legislation is Discriminatory

Chief Justice Smith agreed with the appellants on several issues:

Injured victims whose claims are capped by the legislation are treated differently from other automobile accident victims. Justice MacDonald ruled that this meets the distinction required by Section 15 of the Charter of Rights and Freedoms to establish discrimination.

The distinction is based on one of the prohibited ground of discrimination listed in the Charter. In this particular case accident victims were being discriminated against on the grounds of physical disability.

Chief Justice MacDonald acknowledged that minor injury victims are disadvantaged by the minor injury cap legislation.

Finally, Chief Justice MacDonald agreed that the court had to consider any evidence of prejudice or stereotype regardless of how limited it might be, in considering whether the legislation violates the Charter.

Balancing Act

However, after conducting an analysis of the evidence for each of these points Chief Justice MacDonald determined that the court had to consider whether the legislation’s purpose (controlling increasing auto insurance premiums) out-weighed the discriminatory effects of the legislation.

Minor Injury Cap Doesn't Eliminate All Right to Recovery

Chief Justice MacDonald distinguished the Supreme Court of Canada’s decision in Martin v. Nova Scotia (Workers Compensation Board) which found that the way in which Nova Scotia’s workers compensation legislation treated victims of chronic pain was discriminatory. Chief Justice MacDonald stated that, in Martin, claimants were denied all right of recovery whereas under the automobile insurance “minor injury” cap, victims’ right to recover compensation was limited rather than eliminated.

Legislation Doesn't Discriminate Against Women

Chief Justice MacDonald also dismissed the appellant’s arguments that the legislation unduly discriminates against female accident victims. While acknowledging that women have been historically disadvantaged in the work place Chief Justice MacDonald feels that the root problem of the discrimination and reduction in women’s wages were caused by unrelated social issues, not the minor injury insurance cap.

Minor Injury Cap Upheld

The Court of Appeal has decided that the minor injury cap legislation is discriminatory. However the discrimination is not sufficient to trigger the equality provisions of Section 15 of The Charter of Rights and Freedoms. In other words, the legislation discriminates. It just doesn’t discriminate enough to violate Canada’s constitution.

So there you have it, in Nova Scotia the minor injury compensation cap is constitutional and all of the limits and restrictions that the legislation places on innocent automobile accident victims are justified in pursuit of lower automobile insurance rates.

Supreme Court Denies Alberta Leave to Appeal

Accident victims in Alberta have been waiting for leave (permission) from the Supreme Court of Canada to appeal the decision of Morrow v. Zhang which upheld to constitutionality of Alberta’s minor injury automobile cap.

Minor Injury Cap Reinstated in Alberta

On Thursday morning the Supreme Court of Canada denied the accident victims’ leave to appeal. In other words, the Court wouldn’t even hear the victim’s appeal, let alone consider their arguments.

That means an appeal from Nova Scotia over the Hartling decision is also likely to be denied leave, since the Supreme Court only hears matters that have a national interest.

NDP to Repeal Minor Injury Cap

But not all hope is lost for accident victims.

Yesterday afternoon Premier Darrell Dexter confirmed the NDP government’s commitment to “scrap” the minor injury cap.

Premier Dexter was quoted as saying:

"The $2,500 cap is not fair to people who have suffered serious injury," he said.>"Insurance is a product designed to protect people. If you exclude people from protection through a $2,500 cap, then by definition you're not delivering the product that has been paid for."

Contact the Premier

Please contact the Premier to voice your support for the government’s plan to repeal the minor injury cap. You can contact his office here or

Telephone: 902-424-6600
Fax: 902-424-7648
Toll-free Message Line: 1-800-267-1993
E-mail Address: premier@gov.ns.ca
Address:
Office of the Premier
PO Box 726
Halifax, Nova Scotia
B3J 2T3.

Further Reading

My colleague David Brannen has posted a more thorough analysis of the hartling decision on his Nova Scotia Car Accident Law Blog. Take a look.

Continue reading "Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law" »

Head Injury Seminar

Hockey Canada is conducting its 2009 concussion seminar in Regina this week. The seminar, being staged jointly by Hockey Canada and the Dr. Tom Pashby Sports Safety Fund invites hockey player, parents, team managers, therapists, coaches and trainers, physicians and other medical professionals to receive up to date information on the diagnosis, treatment and return to play protocol for players who suffer from a concussion.

Concussions a Problem in Hockey

Former NHL defenseman Jammie Heward was attending the seminar. Heward estimates that he may have had more than 20 concussions during his amateur and professional hockey career.

But:

“The pressure to get back on the ice as quick as you possibly can is so incredible. I don’t mean its pressure from management and trainers; I mean its pressure from the players themselves.”

Players Lie to Play

Heward actually admits that some players will even lie to their trainers and team physicians because they don’t want to be taken out of the lineup.

NFL Acknowleges Brain Injury a Problem

The National Football League is also beginning to recognize the huge problems that concussions pose to professional football players.

Pittsburg Stealers receiver, Hines Ward created a uproar recently when he slagged quarterback, Ben Roethlisberger, for sitting out after suffering a concussion which resulted in Pittsburg loosing in overtime to the Ravens.

Public Service Announcements

My colleague Bruce Stern has posted on the Traumatic Brain Injury Law blog that the NFL in now conducting public service announcements on the danger of concussions and how to recognize the signs and symptoms of concussion.

Dangers in Amateur Sport
I have posted before about the dangers of a concussion in amateur sports.

Ban Fighting in Hockey to Prevent Brain Injuries – Deaths: Expert Panel

NHL, Parents Need to be Aware of Brain Injury from Concussion

In Canada hockey is our national sport, in the United States football carries the same tradition.

More Education Needed

But it is clear that athletes, both amateur and professional, are not being properly educated about the dangers of brain injury caused by repeated concussion.

For more information about concussion and brain injury you can check out my website or contact me to receive a free copy of my book, The Survivor’s Guide to Brain Injury Claims.

The Discovery Process

One of the most important steps in any personally injury claim is the oral discovery. If you file a lawsuit for compensation for personal injuries you will be required to testify about your knowledge of the event that lead to the lawsuit and your knowledge of the injuries that you have suffered.

In other words; what happened? How badly were you injured? How have the injuries effected your life?

A discovery is basically a question and answer session where you swear (or affirm) to tell the truth. The question and answer session is recorded by a court reporter who will type up a transcript of all the questions and answers. That transcript can be used later in court.

Since more than 90% of civil lawsuits settle before trial, the oral discovery is probably the most important step in the litigation process. As the name implies, the discovery process allows each side to “discover” all there is to know about the other side’s case. Each side gets a better understanding of the strengths and weaknesses of their claim and their opponents claim. They are able to judge how the plaintiff and defendant will appear if they have to testify in court.

In short, the discovery process provides a “dry run” for how the witness will testify at trial.

Before your discovery your lawyer will meet with you to prepare you for the discovery. I have prepared a report for all of my clients who are getting ready for discovery so that they can read it at their leisure and we can discuss any questions that they have. If you would like a copy, feel free to contact me through this blog.

Continue reading "What is a “Discovery”? Halifax Personal Injury Lawyer Explains" »

A new study out of Boston Children’s Hospital published in the December issue of the journal Neuron shows that injured nerve fibers (axons) can regenerate when certain genes are deleted.

Brain and Spinal Cord Injury Usually Permanent

Victims of brain injury and spinal cord injury often suffer permanent and catastrophic injuries because their damaged nerve axons cannot regenerate. However, a team from the neurobiology centre at the Children’s Hospital of Boston indicates that axon regeneration is inhibited by certain genes.

The research team was able to use genetic techniques to delete the genes in mice.

One of the co-authors, Fage Sun PhD. said that:

“We are very excited by these finding…we are testing whether these manipulations prove functional recovery after optic nerve injury and spinal cord injury.”

Hope For Spinal Cord Injury and Brain Injury Survivors
While the research is a long way from human trials there is hope that the study may lead to progress in rehabilitation of persons who have suffered brain injury or spinal cord injury.

Continue reading "Research May Show How to Heal Brain Injuries" »

Parental Waivers Not Worth the Paper They Are Printed On?

In what appears to be the first ruling of its kind in Canada, the British Columbia Supreme Court has ruled that parents cannot waive their children's rights to sue for negligence when the child is injured as a result of participating in recreational or sports activities.

In Wong v. Lock's Martial Arts Centre Inc, Justice Willcock held that British Columbia's Infants Act:

"Does not permit a parent or guardian to bind an infant to an agreement waiving the infant's right to bring an action in damages in tort"

The plaintiff, Victor Wong was 16 years old when he broke his arm participating in a martial arts sparing match organized by the defendant martial arts club.

Parent Waivers are Commonplace

Any parent who has had a child participate in minor hockey, basketball, football, martial arts, gymnastics and so on has probably signed a parental waiver. Typically the waivers are broadly worded and release the defendants from any cause of action whatsoever.

Recreational and Sports Organizations Will Have to Be Careful

I am not aware of any equivalent case law in Nova Scotia and this case appears to be the first of its kind in Canada. What it means for the future is that organizations that hold recreational or sports activities will need to be more vigilant to ensure that they are not negligent in the way they organize their activities.

What do you think? Have you ever signed one of those waivers? Ever read it? Perhaps you should next time.

Brain Injury Myth Debunked Again

It is a common myth of traumatic brain injury that you need to strike your head in order to suffer a brain injury.

For example, read my previous post, Traumatic Brain Injury Claims: Myth #2 You Have to Hit Your head to Suffer a Brain Injury

It is now commonly accepted (by everyone except insurance companies) that acceleration/deceleration trauma, like the forces scene in a severe whiplash case, can cause brain injury.

Blast Waves Can Cause Brain Injury

Researchers at the University of Rochester have discovered that non-lethal blast waves can create enough pressure on the skull to create damaging blows to the brain, even without a direct head impact.

Most Brain Injury Due to Trauma

Most traumatic brain injury results from direct physical trauma to the head/brain and can cause severe and permanently disabling injuries.

Blast Waves Similar to Physical Trauma

Recent research performed on behalf of the American military shows that concussive blast waves can cause damage similar to physical trauma. Researchers used three dimensional simulations to prove that blast waves cause the skull to flex which produce mechanical forces on the brain similar to those in physical impacts from automobile accidents. One of the researchers, Eric Blackman said that the research was important because:

“By comparing the effects of blasts on the head with the effect of head impacts we will be able to make some sense of the distinct mechanisms of injury, the damage a solder might incur and how a helmet might be designed to minimize both.”

This research isn't just important to members of the military. It is relevant to anyone in the construction industry whose work involves blasting. It may assist in workers compensation claims for persons who suffer a brain injury as a result of being exposed to shock waves from concussive blasting.

Continue reading "Blast Waves Can Cause Brain Injury Without Blow to the Head " »

The Supreme Court of Nova Scotia recently released the decision of the Estate of Theresa Anne Jollimore v. The Personal Insurance Company of Canada. The decision of Justice Coady involves a case where a minor (Jollimore) suffered a serious brain injury when the car in which she was a passenger was involved in a car accident.

Father Acts as Litigation Guardian

Because she was a minor, Ms. Jollimore’s father was appointed by the court as her litigation guardian to act on her behalf to bring forward her compensation claim.

Claim Settled

The defendant’s insurance company, The Personal Insurance Company of Canada appointed counsel and the parties engaged in mediation where they settled Ms. Jollimore’s claim for $235,000.00

Claimant Dies Before Payment

However, after the parties negotiated the settlement and signed a settlement agreement, Ms. Jollimore passed away from a drug overdose.

Insurance Company Tries to Back Out of Settlement

The insurance company took the position that because Ms. Jollimore died before they issued a cheque, the settlement was not binding. The insurance company also argued that since Ms. Jollimore had reached the age of majority (19 years) she was no longer a minor and therefore her father no longer had the authority to act as her litigation guardian to negotiate the settlement.

Insurer Knew Claimant Was Brain Injured

Justice Coady reviewed the evidence which clearly indicated that all of the parties were aware that Ms. Jollimore was not a minor at the time the settlement was negotiated. The parties were also clearly aware that Ms. Jollimore’s serious brain injuries rendered her incompetent and that she was not capable of managing her own affairs.

Insurer "Taking Advantage" of Claimant's Death

Justice Coady stated, at paragraph 26 of his decision:

“I have a great deal of difficultly with the respondent’s (insurance company) position. It is clear that the settlement was arrived at in good faith after the respondent was provided with all relevant information. The respondent was fully apprised of the risks associated with Ms. Jollimore’s lifestyle and health. The settlement figure reflected these factors. The respondent’s unwillingness to honor the agreement is predicated on taking advantage of Ms. Jollimore’s unfortunate demise.”

Protecting the Rights of People Who Cannot Protect Themselves

Justice Coady went on to point out the importance of trying to protect the interest of persons who have been injured and are no longer able to look after their own affairs. Justice Coady stated:

“It should not be forgotten that at the time of the settlement Ms. Jollimore was incompetent … I conclude that the settlement is binding on the parties.”

Moral Obligation May Not be a Legal Obligation

This decision reinforces the importance of insuring that, at every step of the litigation process all of the proper requirements under the court rules and appropriate provincial laws have been complied with. While most people understand that “a deal is a deal” this type of moral obligation means nothing to an insurance company like The Personal which tried to take advantage of a technicality under Nova Scotia rules of court in order to renege on their obligations to a grieving family.

Continue reading "Claimant Dies After Settling Claim – Insurance Company Tries to Back Out of Deal" »

I am often asked by my personal injury clients why they have to provide so much personal information to the defendant’s lawyers that appears to have little or no relevance to the injuries they suffered in their accident.

Income Records

When you file a claim for compensation for personal injuries, your entire life essentially becomes an open book. If you are looking for compensation for income loss that you say you suffered as a result of your injury, the defendant is entitled to details of all of your income records up to the time you were injured and since you were injured.

Past Medical History

If you are looking for compensation for pain and suffering as a result of your physical injury, the defendant is entitled to information about your medical history to see if there are any pre-existing illnesses or injuries that might impact on the injuries you claim to have suffered in your accident.

Pre-Existing Medical Conditions?

Your personal injury lawyer will want to know whether you have had any similar injuries in the past and so will the defendant’s lawyers. Any embarrassing medical conditions that you have can be handled in a respectful and professional manner. However, it is absolutely imperative that you are honest with your lawyer. You must let your lawyer know of any potential problems that you have had with medical issues in the past. That way, your lawyer can help develop a strategy to address the medical issues and ensure that you receive appropriate compensation.

How to Ruin Your Claim

There is nothing more damaging to a personal injury claim than for the defendant’s lawyers to find out that the plaintiff has lied about or concealed previous injuries or illnesses that have an impact on their compensation claim. Your right to receive full and fair compensation depends a great deal on your credibility. Anything that you do to damage your credibility also damages your ability to receive fair compensation for your injuries.

Continue reading ""I Want to File a Personal Injury Claim – Why Do I Have To Give All My Personal Information to the Defendant?"" »

It’s summer time here in Nova Scotia (although you couldn’t tell from the weather we’ve been having lately). Thousands of children across Nova Scotia are attending summer camp for the first time. The experience can be perhaps a little nerve racking. Then Mom and Dad get the call they have been dreading:

“Your daughter fell off the swings and broke her leg…”.

“Your son was hit in the head with a baseball and is unconscious…”

“Your child fell out of the boat during sailing lessons and almost drowned…”

What do you do? Who do you call?

Here is a list of the things you need to do right away:

1. Find out exactly where your child is now: You need to make sure that your child is receiving appropriate emergency medical care. Do not yell or get angry with any of the camp counselors who may have been responsible for supervising your child. This isn’t the time for threats or accusations just make sure your child is getting proper medical attention.

2. Find out what exactly happened from an adult who is in charge of supervising the camp. Make notes of all the details of the conversation, who you spoke to and the date and time that the conversation took place.

3. Tell the camp supervisor that you require that the accident be investigated immediately and that an incident report and witness statements be obtained right away.

4. If the camp is out of town, find out where your child is and if they have been admitted to the hospital. Make arrangements to get to the hospital as soon as possible.

5. Ask for the name of the doctor who is treating your child and call the hospital to confirm the information. Sometimes children may be transferred by ambulance to a rural hospital but, if their injuries are serious or life threatening, they may be transferred to a larger hospital or one theat specializes in children. You don’t want to be driving around on a wild goose chase trying to find your child at a time like this.

6. Once your child’s health has stabilized you can find out why the accident happened. Were the camp counselors properly supervising the children? In other words, could the accident have been prevented and if so how?

7. As parents we all know that accidents happen. However, sometimes accidents shouldn’t happen if the children were properly supervised or if a dangerous situation had been rectified. When an accident happens, you need to ask a lot of questions then you need to speak to a lawyer with experience in handling serious personal injury claims in order to protect your child’s rights.

Have a great, and safe, summer!

Microscopic Injuries

Mild traumatic brain injury is an injury to the tissues of the brain that happens at the microscopic level. Typically the axons of the brain are sheared or damaged so that they can no longer properly transmit impulses throughout the brain.

Common Diagnostic Tools

The most common diagnostic tool used to detect injury or damage to the soft tissues of the body is the CT scan. A CT scan, sometimes called a CAT scan, is a non-invasive scan that combines special x-ray equipment with computer technology to produce images of the inside of the body. The CT scan produces “slices” or cross sectional images of the area that is being scanned which can then be examined or interpreted on a computer monitor.

A magnetic resonance imaging (MRI) scan is a more sensitive test to detect damage or injury to the soft tissues of the body.

Detects Macroscopic Injuries

Unfortunately, both CT and MRI scans can only detect macroscopic injuries. In other words, injuries that can be seen by the naked eye.

What that means, is that the two most common diagnostic tools used by doctors to detect brain injury are not sensitive enough to actually detect the microscopic effects of mild traumatic brain injury!

In the textbook Neuropsychiatry of Traumatic Brain Injury, the authors state:

“Many patients with a history of “minor” brain injury will not have abnormalities on their MRI, yet can manifest clear evidence of functional impairment on neuropsychological measures.”

The authors of this textbook point to the old medical saying:

“Absence of proof is not proof of absence”.

In other words, just because you can’t see any evidence of brain injury on a CT scan or MRI scan, does not mean that the injury isn’t there.

I have had many clients whose mild traumatic brain injury were missed by emergency room personnel or their family doctors because a proper medical history wasn't taken or because they simply didn’t pay close enough attention to the symptoms of brain injury that their patient was exhibiting or complaining of during their examination.

In my view, the only way to conclusively rule out the possibility of a mild traumatic brain injury is through a comprehensive neuropsychological examination in order to determine whether or not the person is exhibiting any cognitive deficits which may have been caused by a traumatic brain injury.

Continue reading "Traumatic Brain Injury Myth #3: A Normal MRI or CT Scan Means No Brain Injury" »

2 Important Questions

There are two questions that almost every single client asks me during our first meeting. They are questions that I think every person who has suffered a personal injury should ask their lawyer before they decide to hire them.

The two questions are:

1. How long will this take?

2. How much will I get?

The honest answer to both of these questions (at least during the initial interview) is: “I don’t know”.

How Long Will This Take?

The golden rule of any personal injury claim is that you should never settle your claim until your injuries have completely resolved or until you know the full extent of any future residual disability that you may be left with as a result of your injuries. In other words, don’t settle your claim until you know how your injuries are going to affect you in the future.

It is often very difficult to tell, shortly after an accident, how long a person’s injury will last. It is usually impossible to tell what kind of long term residual problems they will have as a result of their injuries.

That means it is difficult if not impossible to determine how long it will take you to recover, how long it will take your doctors to provide a medical-legal opinion as to what your future limitations will be, what affect it will have on your future employment, what, if any, future rehabilitative or medical treatment you will require.

It is also impossible to say, in the early stages of a lawsuit how long it will take to complete document disclosure, complete discoveries of the parties, and get a trial date from the court.

While most experienced personal lawyers will be able to tell how long it takes to resolve a typical injury claim, your claim may not be “typical”. Every personal injury claim is unique and the best course of action depends on the particular facts of each individual case.

If a lawyer tells you in your first meeting exactly how long it is going to take before your claim is settled or how long it will be before you get to trial, ask them to put it in writing. Then you may want to consider talking to another lawyer.

How Much Will I Get?

The amount of compensation you will be entitled to receive for non-pecuniary damages (what is typically referred to as compensation for “pain and suffering”) depends a great deal on how long it takes you to recover from your injuries.

As I have explained above, it often takes months, sometimes years, for doctors to determine what the full extent of a patient’s injuries are and what the long term affects will be. That means it will take time to determine the full extent of the compensation you are entitled to receive for your non-pecuniary damages.

You are also entitled to recover compensation for things like loss of housekeeping capacity, loss of income, medical expenses and any other out of pocket expense you may have suffered as a result of your injuries.

In short, it will usually take a great deal of time and investigation to determine the full value of your claim.

If a lawyer tells you in your first meeting: "your claim is worth millions", ask him or her to put it in writing. When they won't, you may want to consider talking to an experienced personal injury lawyer.

Continue reading "2 Questions To Ask Before You Hire a Personal Injury Lawyer" »

Landmark Ruling Regarding Loss of Housekeeping Capacity

In the 1991 decision of the Saskatchewan Court of Appeal in Fobel v. Dean, the court confirmed that loss of housekeeping capacity has value and an injured plaintiff is entitled to be compensated for the loss of that capacity.

Nova Scotia Confirms Claims for Loss of Housekeeping

In 1998, Nova Scotia Court of Appeal confirmed that the loss of housekeeping capacity is a separate and distinct head of pecuniary damages and must be compensated for accordingly. In Carter v. Anderson, Justice Roscoe stated:

“Future loss of capacity, where proved, should be compensated separately, whether or not replacement help has been paid in the past … the partial or total loss of that ability has economic value which should be recognized.”

In the 11 years since the Carter v. Anderson decision there has been a tremendous amount of confusion experienced by lawyers, insurance companies and the courts as to how to properly calculate a loss of housekeeping capacity.

Groundbreaking Decision in Ontario

The National Post has reported on a recent "groundbreaking" decision by the Ontario Court of Appeal that helps to provide some clarity. In McIntyre v. Docherty the Court of Appeal stated that in order:

"...to avoid this kind of confusion in future cases where different scenarios of housekeeping losses arise, it will be helpful if the jury can be specifically instructed regarding the type of loss at issue and the evidence in support of that loss."

Three Types of Housekeeping Losses

The court goes on to classify three different types of housekeeping losses.

Pre-trial: Work Left Undone

Justice Susan E. Lang for the Court of Appeal:

"Where the injured plaintiff is unable to perform some or all housekeeping tasks, and where a third party [i.e. a housekeeper] does not do the work in the injured person's stead, work will be left undone...In that situation, the injured plaintiff will experience two sorts of intangible losses compensable in an award of non-pecuniary [i.e. general] damages."

Pre-trial: Work Can Be Done, But with Difficulty/Pain

"A plaintiff may continue to undertake housekeeping but may experience pain or difficulty in doing so…He or she may be required to work more hours post-accident to accomplish the same amount of pre-accident housekeeping. If a plaintiff thus works 'inefficiently,' he or his non-pecuniary award would be increased to reflect any increased pain and suffering."

Pre-Trial: Work Done by Third Parties

"The law is well-established that where a plaintiff incurs a pre-trial, out-of-pocket loss by hiring a replacement homemaker, the plaintiff may claim the reasonable replacement costs of that homemaker as special [i.e. pecuniary] damages."

Decision Provides Clarity

The decision of the Ontario Court of Appeal is reasonable and, for the most part, mirrors the approach taken by most judges in the Nova Scotia courts. However, this decision is the first one that I have seen that clearly explains how to appropriately calculate different types of loss of housekeeping capacity.

Continue reading "Ontario Court of Appeal Tries to Bring Clarity to Calculating Loss of Housekeeping Claims" »

Last week I had the pleasure of golfing in the Brain Injury Association of Nova Scotia's 18th annual 18 Holes for Hope Golf tournament.

Brain Injury Awareness Month

The tournament is one of BIANS's major fundraisers and I was happy to be part of the organizing committee.The tournament is held in June every year as part of Brain Injury Awareness month.

BIANS: Helping Survivors and Their Families

Over the past 20 years, BIANS has helped provide a community of support for survivors of brain injury by bringing together brain injury survivors, family members and health professionals.

BIANS has established a chapter network at the grassroots community-level to provide support and information to survivors and their families.

BIANS is a source of information about the effects of brain injury and has worked to increase injury prevention and awareness of brain injury.

BIANS established Aiseirigh House (now operated by the Moving In New Directions Society) a residential assisted living facility for brain injury survivors, and the Inroads Program; a community-based program for survivors which teaches cognitive skills and strategies in a combination of one-on-one tutoring, workshops/classroom and social settings.

Living With Brain Injury

I have dedicated my career to helping persons with serious injuries receive fair compensation. To get some idea of the effects, and extraordinary needs of brain injury survivors, take a look at this lecture about living with a traumatic brain injury.

How to Make a Donation

If you want to help support BIANS you can make a donation here.

Continue reading "June is Brain Injury Awareness Month" »

Last week the Alberta Court of Appeal released its decision in Morrow v. Zhang.

Alberta introduced legislation placing a “cap” of $4000.00 on the compensation that persons who suffered a “minor injury” were entitled to receive. The plaintiff’s Morrow and Pedersen appealed the cap claiming that it infringed their rights under Section 15(1) of the Canadian Charter of Rights and Freedoms.

The trial judge ruled that, were it not for the “minor injury” cap, the plaintiffs would have been entitled to non-pecuniary damages in excess of the $4,000.00 cap. The trial judge also found that the distinction in the legislation between people that had suffered a minor injury and other injured victims resulted in substantive inequality resulting in an unequal distribution on financial benefits.

The trial judge found that the legislation was discriminatory and that the distinction was not reasonable and justified under the Charter. The trial judge struck out the cap as being unconstitutional.

Province of Alberta and Insurance Industry Appeals

The Alberta Court of Appeal has ruled that the minor injury cap legislation must be considered as a whole and not in isolation. The Court of Appeal stated that while the legislation did make a distinction on the basis of disability, the distinction was not discriminatory.

Trade-Off of Rights/Benefits

The court appears to focus on the fact that while victims of “minor injuries” would receive lower compensation for non-pecuniary damages (“pain and suffering”) the trade off was that all victims of car accidents were entitled to increased no-fault medical benefits.

The court stated that a reasonable person in the position of a minor injury claimant would not conclude that the distinction created by the minor injury cap was discriminatory.

This finding is puzzling. I have explained the Nova Scotia minor injury cap to hundreds, if not thousands, of accident victims since Nova Scotia introduced similar legislation. Unanimously, injured victims feel that it is unfair that they are being singled out by the legislation when injured persons whose claims exceed the cap are entitled to full compensation.

Nova Scotia Appeal to be Heard in October

The appeal of Nova Scotia’s minor injury cap legislation is scheduled to be heard in October of this year. It remains to be seen how the Nova Scotia Court of Appeal will deal with this issue.

Stay tuned.

Okay, lawyers have a bad reputation.

In most public opinion polls we rank just above used car salesman and below politicians when it comes to trust.

I am proud to be a lawyer. I think being able to help people when they are most in need is one of the most important jobs in the world.

But sometimes I am simply embarrassed to tell people what I do.

Here are five reasons why.

Thanks to The Greatest American Lawyer for the link.

Hydroxycut Recall

The Hydroxycut recall that I posted about 10 days ago has resulted in an investigation by Health Canada.

Adverse Effects Reported in Canada

To date Health Canada has received 17 reports of adverse reactions related to hydroxycut use. The adverse reactions relate to the cardiovascular, respiratory, gastrointestinal, and neurological systems. So far, none of the adverse reactions reported in Canada relate to liver injuries, which were the main cause of the FDA recall.

How to Report Hydroxycut Problems

Health Canada indicates that you can report any adverse reactions that you think may be related to Hydroxycut three ways:

Report online at the MedEffect™ Canada Web site

Call toll-free at 1-866-234-2345

Complete a Canada Vigilance Reporting Form and either: Fax toll-free to 1-866-678-6789 Mail to: Canada Vigilance Program Health Canada AL 0701C Ottawa, ON K1A 0K9

Continue reading "Canadian Hydroxycut Injury Claims: Health Canada Update " »

The American Academy of Pediatrics (AAP) wants doctors to stop using the term “shaken baby syndrome”.

Shaken Baby Syndrome is a diagnosis used to describe injury to the brain, skull and the spine of infants who have suffered severe shaking.

The AAP has recommended using the term: “Abusive Head Trauma”. This diagnostic term more accurately reflects the nature of the injuries suffered by infants. The term also more accurately conveys the nature of the injury. Shaking an infant can cause bruising, swelling and bleeding to the brain which, according to the National Institute of Health:

“...can lead to permanent, severe brain damage or death.”

The fact remains that many members of the public do not realize that it is possible to suffer a brain injury without striking your head. That is one of the brain injury “myths” that I dispel in my article “8 Myths of Traumatic Brain Injury”.

For more information about traumatic brain injury claims, you can contact me to receive a free copy of my book: The Survivor’s Guide to Traumatic Brain Injury Claims: How to Prove the Invisible Injury.

Technorati Profile

Continue reading "Doctors Call for New Name for “Shaken Baby Syndrome”: Halifax Brain Injury Lawyer Explains" »

I came across an interesting case the other day which should worry anyone who is interested in privacy rights.

Leduc v. Roman is a case out of Ontario. The plaintiff, Leduc filed a claim for compensation for injuries he claim to have suffered in a car accident.

The defendant, Roman, made an application to court for an order to produce the contents of Leduc’s Facebook page! Leduc claimed that, because he only allowed access to his Facebook page to his Facebook “friends”, the contents of his Facebook site were private and confidential.

Roman lost the initial motion to force production of Leduc’s Facebook site. However, Roman appealed and Justice Brown of Ontario's Superior Court issued a decision ordering the plaintiff to produce the entire contents of his Facebook site.

Justice Brown reasoned that:

“...to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

Given the massive popularity of Facebook I am sure that many of my clients have Facebook pages. I am even aware of a couple of my clients who have posted details of their accidents or injuries on their Facebook websites. The clear message from this decision is that plaintiffs who post details of their private lives on a public website risk having all of that information used against them some day in court.

Continue reading "Posting About Your Car Accident on Facebook? Better Think Twice!" »

How Do You Put a Price on the Loss of a Loved One?

I have already posted about how the courts calculate compensation for pain and suffering. But what happens if your family member died from their injuries?

There is no way to truly place a dollar value on the loss of a loved one due to a fatal injury. Law makers in Canada and the courts have struggled with the question of how to fairly compensate surviving family members for the loss of a loved one.

American Claims Very Different Than Canada

Many of us have read news reports of cases in the United States where surviving family members have been awarded huge sums of money for the death of a family member. Unfortunately, the laws in Canada regarding compensation for fatal injuries are very different, and compensation awards rarely reach the levels seen in American cases.

Different in Each Province

Each province in Canada has laws governing claims for compensation for fatal injuries. The laws allow a claim to be made by the family members of a deceased person where his or her death is caused by an intentional or negligent act.

Financial Losses Covered

Originally claims for compensation were limited to the monetary losses suffered as a result of the fatal injury. In other words, the actual out of pocket financial loss resulting from the person’s death.

No Compensation for Grief

The law does not take into account non-financial losses like the grief and sorrow experienced by family members.
Compensation for Loss of Companionship

Currently every province in Canada has legislation that allows certain family members to recover some measure of compensation for the loss of care, guidance and companionship that the deceased family member would have provided had they not passed away.

It is important to remember that each province has its own specific law with special rules governing which family members are entitled to make a claim, how the claims are to be assessed, and the amount of damages that can be recovered.

Who Can Make a Claim?

In any claim involving a fatal injury it is important that you speak to an experienced personal injury lawyer to determine which family members are eligible to make a claim for compensation and to ensure that their claim for compensation is properly calculated.

For example, in Nova Scotia, claims for loss of care, guidance and companionship can only be brought by parents, grandparents, children and spouses (including common law). Siblings (brothers and sisters) are not entitled to file a claim for compensation!

Every Case is Different

The amount of compensation that can be recovered in Nova Scotia depends a great deal on the nature of the relationship and the facts of each particular case. If you are considering filing a claim for compensation for the loss of a loved one it is vitally important that you speak to an experienced personal injury lawyer to ensure that all of the relevant facts and evidence are provided to the court to ensure that you receive full and fair compensation.

Continue reading "Nova Scotia Personal Injury Claims: Compensation for Fatal Injuries" »

One of the challenges that I face as a Nova Scotia personal injury lawyer is explaining to people who have been seriously injured how much compensation they are entitled to receive.

Pain and Suffering

One of the heads of damages that the court will consider when awarding compensation is what lawyers refer to as “non-pecuniary damages”. Most people refer to this type of damages as “pain and suffering”.

How Do Courts Calculate “Pain and Suffering”?

There is no such thing as a “Pain-O-Meter”. An injured victim cannot be hooked up to a machine that prints out the financial value of their pain. What a judge does when determining compensation for pain and suffering is use his or her experience and discretion to consider how the injury has affected the victim’s ability to function and how the injury has effected the person's enjoyment of life.

In other words, how have your injuries affected your normal day to day activates; your ability to work; and your normal amenities of life?

Financial Awards in Canada Different than the United States

Many of my clients have read news stories from the United States where injured victims have been awarded millions of dollars (sometimes tens of millions of dollars) for their “pain and suffering” from catastrophic injuries. Unfortunately, those types of damage awards cannot happen in Canada.

Supreme Court of Canada Caps Pain and Suffering Awards

The Supreme Court of Canada has placed a cap on the amount of compensation that injured victims are entitled to receive for non-pecuniary damages for pain and suffering.

In 1978, in a case known as Teno v. Arnold, the Supreme Court of Canada created a barrier to recovery for innocent victims who have been injured as a result of someone else’s negligence. In the Teno case, the Supreme Court ruled that no matter how seriously injured you are the maximum compensation that you can receive for your “pain and suffering” is $100,000.00.

Maximum Award for Pain and Suffering

Taking inflation into account, the cap on pain and suffering awards is currently considered to be slightly more than $300,000.00. But that maximum amount is only paid to the most catastrophically injured victims (quadriplegic, paraplegic, severe brain damage and similar injuries).

Even when plaintiff’s receive damage awards that seem large, they often never see the full amount decided by the judge or jury. Many awards are drastically reduced on appeal. These reduced or vacated judgments are seldom reported by the media.

If you are considering a claim for compensation for pain and suffering it is important to have an experienced Nova Scotia personal injury lawyer assisting you to ensure that you provide all of the relevant information that the courts will consider when assessing your non-pecuniary damages claim for pain and suffering.

Continue reading "Nova Scotia Personal Injury Claims: How Much Is My “Pain and Suffering” Worth?" »

New Guidelines to Diagnose Mild Brain Injury

The American College of Emergency Physicians has established new guidelines to be used in diagnosing mild traumatic brain injury.

Serious but Undiagnosed Injury

Mild traumatic brain injury has to be one of the most serious, yet undiagnosed health problems in Canada. Unfortunately, the general public has little understanding of what mild traumatic brain injury is and the problem is compounded by a poor understanding by some health professional about the criteria for what constitutes a brain injury.

Each year approximately 700 Nova Scotians suffer a traumatic brain injury. There are up to 5,000 - 6,000 serious car accidents in Nova Scotia and P.E.I. each year. Given the violent nature of car crashes, many of these people will suffer a mild traumatic brain injury, although they may never be diagnosed by a health professional.

No One Knows the Real Numbers!

In their release announcing the new guidelines, the College of Emergency Physicians states:

“The real incidents of traumatic brain injury are unknown since many patients who sustain an injury never seek medical care.”

I fully support any initiative that makes it easier for health professionals to determine when a patient has suffered a brain injury. But more effort needs to be placed on educating the public about the causes, and symptoms, of mild traumatic brain injury.

Thanks to Bruce Stern at the Traumatic Brain Injury Law Blog for bringing the guidelines to my attention.

Related Posts:

Ban Fighting in Hockey to Prevent Brain Injuries – Deaths: Expert Panel

NHL Hockey Stars - Doctors team up to study concussion/brain injuries

Traumatic Brain Injury: Myth # 1 - You have to be knocked out to suffer a brain injury

Traumatic Brain Injury Claims: Myth #2 You Have to Hit Your head to Suffer a Brain Injury

What is a Mild Traumatic Brain Injury?

Continue reading "Brain Injury Claims: New Guidelines to Diagnose Mild Traumatic Brain Injury" »

Justice Walter Goodfellow has released the second part of his decision in Hartling v. Nova Scotia (Attorney General).

"Minor Injury" Cap Isn't Unconstitutional

As I explained in a previous post last month: “Minor Injury” Compensation Cap Constitutional, Justice Goodfellow determined that Nova Scotia’s legislation that places a cap of $2,500.00 on the compensation that innocent accident victims can receive for their pain and suffering does not violate the Canadian Charter of Rights and Freedoms.

Accident Victims Not Sterotyped or Discriminated Against

In his decision of January 12, 2009, Justice Goodfellow ruled that victims of minor physical injuries were not subject to stereotyping or discrimination. Therefore, the legislation did not violate Section 15 of the Charter, which prohibits discrimination on the basis of a physical characteristic.

Similarly, Justice Goodfellow found that the legislation did not discriminate on the basis of gender or mental disability.

Accident Victims Disappointed - Insurance Companies Happy

Justice Goodfellow’s decision disappointed advocates for accident victims who felt that the legislation was simply a transparent attempt to increase insurance company profits at the expense of innocent accident victims.

The Insurance Bureau of Canada was no doubt very happy about the decision.

However, Justice Goodfellow’s decision of February 9, 2009, is guaranteed to create some consternation amongst the insurance industry.

Is Discrimination Justified?

In his latest decision, Justice Goodfellow provided his views on whether the legislation would survive a Section 1 analysis under the Charter. If the Minor Injury legislation is discriminatory, Section 1 of the Charter can still save the legislation if the discriminatory limits are “justified in a free and democratic society”.

Justice Goodfellow began the second part of his decision by stating that he is certain that he is correct when he ruled that the Minor Injury legislation is not discriminatory. However, given the effort that was put into the hearing by all of the parties involved Goodfellow J. felt that it was appropriate to conduct the Section 1 analysis in case the Court of Appeal differs with his views as to whether the legislation is discriminatory.

Justice Goodfellow conducted an exhaustive review of the evidence submitted during the hearing with respect to the reasons why the legislation was created.

Insurance Industry Pleads Poverty While Profits Increase

Goodfellow J. paid considerable attention to the financial evidence that was presented at the hearing. At the time the Minor Injury cap was introduced, the insurance industry claimed that it was losing money on auto insurance, and needed the cap on personal injury claims to protect insurance profits (and to supposedly lower auto insurance premiums).

Justice Goodfellow determined that the evidence actually showed insurance industry claims costs were decreasing, and company profits were increasing, when the Minor Injury legislation was introduced. Goodfellow indicated that the insurance industry had not provided this financial information to the government when the $2,500 cap was put in place.

His Lordship did not go so far as to say that the insurance industry had mislead the government. (Perhaps the Tory government was just too trusting?)

Goodfellow J. considered the negative effects of the legislation on accident victims who’s claims have been capped.

Minor Injury Cap has Provided Considerable Benefits?

Finally, His Lordship reviewed the evidence with respect to the benefits of the legislation.

He concludes by saying:

“There is no doubt that there has been considerable benefit to the citizens of Nova Scotia in the passing of this legislation.”

Benefits Don't Justify Discrimination!

Justice Goodfellow concludes, at paragraph 108 of his decision:

“Clearly there was no intent in the legislation to cause stereotyping or marginalization. Stereotyping almost always carries a negative, demeaning message that those who are stereotyped are less worthy and possess traits that are not held by decent, law abiding citizens. If, however, it had been established such was a consequence of the legislation, then I conclude the benefits of the legislation fall short of justifying such stereotyping. Given the view I express about stereotyping I am unable to suggest what the Attorney General of Nova Scotia might otherwise have done to overcome the consequences of stereotyping.”

In other words, Justice Goodfellow is of the opinion that the legislation does not discriminate against accident victims. But if it does, the object of the legislation is not one that can be justified in a free and democratic society. Goodfellow’s comments appear to imply that, if the legislation is discriminatory, then there is nothing that can be done to justify the discrimination!

So there you have it, win one lose one. The province and the insurance industry come out ahead on the issue of whether the Minor Injury legislation is unconstitutional.

But Justice Goodfellow sides with injured accident victims on the issue of whether the benefits justify discriminating against accident victims.

No doubt the Court of Appeal will not just be hearing an appeal from the Plaintiffs. I am sure lawyers for the Insurance Bureau of Canada are already drafting their appeal factums.

Continue reading "Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination" »

Concussion a Major Cause of Injury in Sport

Traumatic brain injury due to concussion is a leading cause of injury in hockey. An expert panel at the London Hockey Concussion Summit has called for the elimination of high hits and head hits and a total ban on fighting in hockey.

Fighting can Cause Long Term Injury or Death

The panel’s conclusions state:

“Fighting is one of the known causes of concussion, and may result in the related long term complications. Fighting can cause needless death”.

The summit’s chair, Dr. Paul Echlin, stressed that the various recommendations were designed to “serve as a framework for future discussion” and to promote awareness, prevention, recognition and management of concussion in hockey.

Danger Not Limited to Hockey

The danger of concussion is not limited to hockey alone. Football, soccer, basketball, almost any amateur or professional sport can subject a player to forces necessary to cause a concussion. Players, coaches and family members need to be educated about the signs and symptoms of concussion.

However, hockey appears to be the only sport where fighting is tolerated, even encouraged. Until this attitude changes hockey players are going to be needlessly and seriously injured for the edification of the sports "fans”.

Fans Oppose Eliminating Fighting

You can get an idea of the vigorous opposition to eliminating fighting in hockey by taking a look at the comments posted on the CTV News story that reported on the recommendations. More than half of the comments oppose eliminating fighting in hockey.

No doubt the fans who support fighting in hockey will continue to hold that opinion until they, or one of their loved ones, suffers a serious brain injury from being punched out during a hockey game.

What do you think? Should fighting in hockey be banned or is it a necessary part of the game?

Related posts:

NHL Hockey Stars - Doctors team up to study concussion/brain injuries

NHL, Parents Need to be Aware of Brain Injury from Concussion

Traumatic Brain Injury: Myth # 1 - You have to be knocked out to suffer a brain injury

Traumatic Brain Injury Claims: Myth #2 You Have to Hit Your head to Suffer a Brain Injury

What is a Mild Traumatic Brain Injury?

Continue reading "Ban Fighting in Hockey to Prevent Brain Injuries – Deaths: Expert Panel" »

Nova Scotia Limits Compensation For Injured Car Accident Victims

As I have explained in previous posts, Nova Scotia has legislation that places caps on the amount of compensation that persons injured in car accidents are entitled to receive for their injuries.

"Minor Injury" Cap Constitutional

The Nova Scotia Coalition Against No Fault Insurance filed a court challenge seeking to have the “minor injury” cap declared unconstitutional. On Tuesday, Justice Walter Goodfellow of the Nova Scotia Supreme Court based his decision in Hartling v. Nova Scotia (Attorney General). Justice Goodfellow decided that the legislation is constitutional and does not violate the Canadian Charter of Rights by discriminating against accident victims.

A more detailed review of Justice Goodfellow’s decision will follow in a later post.

Limiting Compensation Okay in N.S.

Justice Goodfellow has decided that Nova Scotia’s cap legislation that caps compensation for innocent victims who have suffered injuries in a car accident is constitutional.

Injured Person's Protected in Alberta

However, in Alberta, similar legislation which placed a cap on the compensation that injured victims received for “minor injuries”, was ruled unconstitutional in a decision released in February 2008.

Needless to say, the Province of Alberta, and the insurance industry, immediately filed an appeal which was recently heard by Alberta’s Court of Appeal. You can read the trial decision in Morrow v. Zhang here.

What Happens Now?

So now what? Two contrasting decisions by two different Provincial Supreme Courts dealing with the same constitutional issue. The case in Alberta is already at the Court of Appeal level. The case here in Nova Scotia will no doubt make its way to our Court of Appeal.

The whole issue will likely have to be sorted out by the Supreme Court of Canada several years from now.

Innocent Victims Pay to Increase Insurance Profits

In the mean time, innocent injured victims pay the price by having their legitimate claims for compensation limited so that insurance companies can make more money.

Continue reading "Nova Scotia Personal Injury Claims: “Minor Injury” Compensation Cap Constitutional " »

Medical experts, former NHL players and olympic medalists will be in London Ontario this weekend to study and draw public awareness to sports related concussions due minor traumatic brain injury.

The London Hockey Concussion Summit is being chaired by Dr. Paul Echlin, a sports medicine and junior hockey doctor. Dr. Michael Czarnota,OHL and WHL consultant, will discuss concussions in minor hockey, and Dr. Jason Mihalik of the University of North Carolina, will discuss the recent multi-center youth concussion study.

But what is likely to get the public's attention are former NHL stars Eric Lindros, Alyn McCaulay, and Jeff Beukeboom will speak about the effects concussions had on their careers.

Lindros was forced to retire after eight concussions, like this one, ended his career.

Concussions are one of the most serious, and underestimated, injuries in amateur sport. Minor traumatic brain injuries are consistently misdiagnosed and I applaud any effort to draw more attention to the problem. Perhaps the Summit signals a new trend: Sports Celebrity Medical conferences.

Related posts:
NHL, Parents Need to be Aware of Brain Injury from Concussion

Traumatic Brain Injury: Myth # 1 - You have to be knocked out to suffer a brain injury

Traumatic Brain Injury Claims: Myth #2 You Have to Hit Your head to Suffer a Brain Injury

What is a Mild Traumatic Brain Injury?

Continue reading "NHL Hockey Stars - Doctors team up to study concussion/brain injuries" »

Early Identification of Brain Injury Critical

Early identification of patients who have suffered mild traumatic brain injury is imperative to determine appropriate treatment and ensure a maximum recovery. Although there is some disagreement among medical professional as to what constitutes mild traumatic brain injury, all medical professionals agree that amnesia is evidence of a brain injury.

Online Tool Helps Explain

I want to thank my fellow blogger, Bruce Stern at the Traumatic Brain Injury Law Blog, for pointing me to a website created by the Department of Psychology at MacQuarie University in Australia. The website was created to help patients who have suffered a mild traumatic brain injury and has an online presentation of the abbreviated Westmead Post-Traumatic Amnesia Scale. The A-WPTAS is a method of measuring the duration of post traumatic amnesia.

You can watch the presentation here.

Brain Injury Association of Nova Scotia

As I have mentioned before, I have been appointed to the Board of the Brain Injury Association of Nova Scotia: Halifax Chapter. BIANS website has a list of online resources for survivors of brain injury and their families.

Continue reading "Assessment of Amnesia in Mild Traumatic Brain Injury Cases: Nova Scotia Personal Injury Lawyer Explains" »

We have been investigating potential personal injury claims against Bayer Inc. the manufacturer of the drug Trasylol (Aprotinin) for almost a year now.

In January 2006, the New England Journal of Medicine reported that of the 4,400 heart surgery patients who received Trasylol:

1. Trasylol increased the risk of stroke by 181%;

2. Trasylol increased the risk of heart attack by 48%; and

3. Trasylol increased the risk of heart failure by 109%.

Furthermore, in a Canadian Research Study referred to as the BART Study, Trasylol was compared to alternative health surgery drugs. The BART Study found that 1 in 50 patients who received Trasylol died from complications related to the drug.

Some patients at the cardiac unit of the Queen Elizabeth II Health Sciences Centre in Halifax Nova Scotia received Trasylol as part of the hospital’s pre-operative procedures. There are no public statistics about how many patients from the Queen Elizabeth II Health Sciences Centre received Trasylol or how many of those patients who received Trasylol developed debilitating or fatal complications.

If you or a family member had heart surgery at the Queen Elizabeth II Health Sciences Centre and suffered stroke, heart attack, heart failure or kidney damage after your surgery, you may have a potential claim for compensation.

Continue reading "Trasylol (Aprotinin) May Cause Fatal Side Effects: Information for patients" »

A “multi-million dollar” class action law suit has been filed against drug manufacturer Bayer Inc. for injuries allegedly caused by the drug Trasylol (also known as Aprotinin)

CTV News has reported that a number of class action lawsuits have been filed in the United States. Now patients in Canada have filed a similar lawsuit.

Bayer Inc. withdrew Trasylol from the market after medical research studies showed that patients treated with the drug were more likely to die than patients treated with other medication.

We have been investigating potential Trasylol claims for almost a year.

In May of this year I posted about a Canadian study called the “BART Trial” which found that patients who received Trasylol were 53% more likely to die than people who received other common anti-bleeding agents like Aminocaproic Acid.

You can read the post here: Trasylol (Aprotinin) Anti-Bleeding Drug Raises Death Risk: Canadian Study.

Almost a year ago a documentary on CBS’s 60 Minutes discussed the risks posed by the drug and suggested that the manufacturer, Bayer, hid evidence that Trasylol was dangerous. The documentary pointed out that as far back as January 2006 the New England Journal of Medicine published a study reporting that Trasylol was connected with kidney failure, cardiac arrest and stroke in patients undergoing coronary artery surgery.

You can watch the whole 60 Minutes story here.

You can also take a look at my earlier post: Is Trasylol (Aprotinin) the Next Vioxx? Manufacturer Hid Evidence Drug was Dangerous.

Trasylol (Aprotinin) has been used by the cardiac surgery unit of the Queen Elizabeth II Health Sciences Centre for many years. If you or a family member suffered kidney failure, cardiac arrest or stroke after having heart surgery, you may have a potential claim.

For more information you can contact me at www.apmlawyers.com or toll free 1-877-423-2050 or through this blog.

For years insurance companies and their lawyers have been telling chronic pain victims: "...it's all in your head!"

Defendants Claim Chronic Pain Isn't Real

Insurance companies hire psychiatrists to produce reports claiming that the chronic pain victim's pain is the result of a psychiatric illness, accuse the victim of malingering or come up with a bogus diagnosis like compensation neurosis.

New Medical Evidence

Well this weeks issue of the medical journal Neuron has proved that the insurance companies are right, the pain is in their head. But not in the way they think.

CBC has reported on a new study that used functional magnetic resonance imaging to study differences in the brains of normal subjects and the brains of subjects with complex regional pain syndrome.

Chronic Pain Rewires the Brain

The brains of chronic pain patients showed physical changes in the brain's white matter, the cable-like "wiring" of fibres that deliver messages between neurons.

The study's lead investigator, Vania Apkarian, a professor of physiology at Northwestern University's Feinberg School of Medicine in Chicago had this to say:

"This is the first evidence of brain abnormality in these patients...People didn't believe these patients. This is the first proof that there is a biological underpinning for the condition."

Another Tool for Victims Advocates

This study is going to be a great tool for those of us that represent injured victims!

Continue reading "Chronic Pain Rewires the Brain: Insurance Companies Take Note!" »

Insurance companies use "dirty tricks" and "unethical behavior" to deny legitimate claims and boost their profits, according to a new report released by the American Association for Justice.

The report explains how insurers have:

...endeavored to deny claims, delay payments, confuse consumers with incomprehensible insurance-speak, and retroactively refuse anyone who may cost them money.

Although the report takes a look at the practices engaged in by American insurance companies, the insurance industry is multi-national in scope and many of the insurers exposed in the report, for example Allstate and AIG carry on business in Canada.

The report describes how:

Allstate gave employees who denied valid claims rewards such as portable fridges, and used a “boxing gloves” approach to policyholders who refused to accept lowball offers.

Here in Nova Scotia, Justice Walter Goodfellow of our Supreme Court just finished hearing a trial involving a constitutional challenge to our province's Insurance Act. The law places a "cap" on the amount of compensation that innocent victims can receive for their pain and suffering if they have suffered a "minor injury". The problem with the law is that the law defines almost every injury as "minor"; making it very difficult for legitimate innocent victims to receive fair compensation for their injuries.

When Justice Goodfellow releases his decision on the constitutional challenge we can expect the insurance industries' "public relations" machine to kick into high gear, claiming that the insurance industry is losing money because of payments to innocent accident victims.

Don't believe a word of it.

Related posts:

Why you may have a "Minor Injury" from your Nova Scotia Car Accident: Reason #3

Why the Insurance Company says you have a "Minor Injury": Reason #2

Why the Insurance Company Says you have a "Minor Injury": Reason #1

Continue reading "How Insurance Companies Deny, Delay, Confuse and Refuse: New Report" »

Do You Have to Hit Your Head to Suffer a Brain Injury?

Most people think that in order to injure your brain, you actually have to hit your head on something. This is one of the most unfortunate myths of brain injury. Many people who have suffered a brain injury do not get timely medical treatment because they do not realize that it is possible to injure your brain without striking your head.

The Anatomy of the Skull:

In order to understand why this myth is incorrect you have to learn a little about the anatomy of the skull. The inside of the skull isn’t smooth like the inside of a bowl. The base of the inside of your skull is rough with several bony ridges or spikes. These ridges can cause an injury to the brain during periods of rapid acceleration and deceleration.

Like a Sponge in a Bucket:

Have you ever used a sponge in a bucket of water to wash your car or your floors or windows? The easiest way I have found to explain how the brain can suffer an injury without the head being struck is to think of the sponge floating in the middle of a bucket of water.

The bucket represents your skull. The water is the cerebrospinal fluid that surrounds the brain. The sponge is your brain. If you swing the bucket back and forth, the sponge will tend to float in the center of the bucket. But if you suddenly stop swinging the bucket the sponge will bump against the inside of the bucket.

The same thing can happen to your brain if your head gets whipped back and forth. This type of injury commonly happens in rear-end or head-on collisions where the driver’s or passenger’s head suddenly whips back and forth and stops suddenly. The sudden stop causes the brain to bump up against the inside of the skull. Damage to the brain occurs at the area of impact.

So it is possible to injure your brain without hitting your head and without ever losing consciousness.

How Do I Know if I Have Suffered a Brain Injury?

Sometimes the trauma to the head and brain is so significant, the injury is obvious. But in many cases, especially if the person has not hit their head, or not lost consciousness, the injury to the brain may be so subtle, that the symptoms of brain injury are not immediately apparent.

On my website, I have listed the most common symptoms of traumatic brain injury. If you or a loved one have been in an accident, and are suffering from any of the symptoms listed here it is important that you seek medical attention. Explain to your doctor that you have been injured, explain how the injury happened, and tell your doctor about the symptoms you are having. Then your doctor can decide the most appropriate way to treat your injury.

Continue reading "Traumatic Brain Injury Claims: Myth #2 You Have to Hit Your head to Suffer a Brain Injury" »

"I wasn't knocked out. How could I have a brain injury?"

I get asked that question a lot. Some people still think that it is still necessary to suffer a loss of consciousness (be knocked out) in order to suffer a brain injury. I would say that the number 1 myth about brain injuries is that you can only suffer a brain injury if you have been knocked unconscious.

Concussion = Brain Injury

More than 30 years ago the Congress of Neurological Surgeons concluded that a head injury that leads to a change in mental status (being dazed or confused) without any loss of consciousness is a form of brain injury.

This type of injury is what is commonly referred to today as a concussion.

Shake it off and get back in the game!

When I was growing up, if a hockey player or football player “had their bell rung” it was common practise for the coach to simply have the player sit on the sidelines until they were able to “shake it off”. Then the player would return to the game.

Today, sports medicine specialists now recognize that suffering a concussion (what we used to call “having your bell rung”) is a serious injury.

Here is an excellent summary of information about sports related concussions in children.

Concussions can Cause Permanent Damage

The cumulative effects of repeated concussions can cause lasting disability and functional impairment. In fact, the risk of serious injury from concussion is so significant that the Canadian Medical Association has called for a ban on body checking for hockey players less than 15 years of age.

Family Doctors Need More Training About Brain Injury?

Over 10 years ago the Journal of the American Medical Association called for more education for family physicians about the effects of mild brain injury. The American Medical Association was concerned about a common misperception that it was necessary for a patient to be knocked unconscious in order to suffer a concussion.

According to the American Psychiatric Association, mild traumatic brain injury can occur with brief or no loss of consciousness. Studies published by the American Psychiatric Association’s Textbook of Neuropsychiatry confirms that patients with mild traumatic brain injury can have physical, perceptual, cognitive and emotional symptoms that collectively is now called post-concussive syndrome.

What Should I Do?

If you suspect you or a family member may have suffered a mild traumatic brain injury you should immediately seek medical attention. You will need to provide your doctor with complete information about how the accident happened and the symptoms that your or your family member has been suffering from since the accident.

Here is a checklist of the symptoms of concussion developed by the Brain Injury Association of Nova Scotia.

Continue reading "Traumatic Brain Injury: Myth # 1 - You have to be knocked out to suffer a brain injury" »

Provincial health authorities in Quebec have announced a recall of three brands of cheese after one person died and 87 people became sick from salmonella food poisoning.

The recall has increased the hysteria surrounding the Maple Leaf Foods listeria recall.

I have seen at least three media reports incorrectly linking the cheese recall with listeria. See here and here, for examples.

The media reports have helped Canadian's become more aware of some of the risks inherent in our food safety system. However, they have also created a great deal of fear in many people who are now afraid to eat any kind of packaged food product.

The fact is that those most at risk from listeriosis are infants, the elderly, pregnant women and people with compromised immune systems. The general public has very little risk of becoming seriously ill as a result of listeria.

It is certainly possible for people to suffer serious injury or death if companies responsible for manufacturing and packaging foods are negligent. It is also people for people to suffer illness or death if food is not properly prepared/cooked.

Most listeria and salmonella outbreaks are due to contamination by the person preparing/cooking food products.

So be careful how you prepare your food. Pay attention to "Best Before" dates on food packages. And keep track of how long that leftover meatloaf has been in your fridge before you feed it to your kids!

Have a safe Labour Day weekend!

Maple Leaf Foods Recall

Last week Maple Leaf Foods announced a voluntary recall of meat products produced at their packing plant in Toronto, Ontario as a result of several cases of illness and death linked to food products contaminated with Listeriosis.

Media Frenzy

The outbreak and recall has received a considerable amount of attention from the media. In fact, it would be an understatement to describe the reaction as a “frenzy”.

Several Lawsuits Filed

Not surprisingly this week saw at least 5 class actions filed on behalf of people who suffered illness, death, mental distress or financial loss as a result of the tainted meat recall.

Recall to Cost Millions

Maple Leaf Foods predicted that the recall would cost the company $20 million dollars.

Stock prices have "plunged" hitting record lows in less than a week.

Risks Not Explained

The shock and fear expressed by the public as a result of this recall has served to highlight the risks inherent in our food safety system. Unfortunately I have not seen a great deal of media coverage explaining the risks to the public as a result of this outbreak.

Fortunately, the general public, as a whole, has little risk of contracting any serious illness or suffering a fatality as a result of contracting listeriosis.

Unfortunately, the persons who are most likely to contract the disease, and suffer serious illness or death, are those members of society who are most vulnerable; the very young, the elderly, those who are sick or frail, and pregnant women.

What is Listeria?

Listeria is a bacteria. It is commonly found in soil, vegetation, animal feed and in feces.

What are the Symptoms?

Infants, the elderly and those who are already sick or frail are most susceptible to becoming ill after exposure to listeria. Symptoms include vomiting, nausea, diarrhea, headache and fever. The disease is often misdiagnosed as the flu.

How Long Before Symptoms Appear?

Symptoms usually appear within 2 days to a week after consuming food contaminated with listeria. However, the bacteria can colonize for up to 30 days before symptoms appear.

Treatment

The symptoms can be treated effective through the use of antibiotics. However, if symptoms are not treated promptly they can develop into more serious problems like septicemia ( blood infection) or meningitis or encephalitis (brain infections).

I have included a link to the Canadian Food Inspection Agency's Listeria site for more information.

Maple Leaf Food’s Response

From a public relations standpoint, I have to applaud Maple Leaf Food’s response to the recall. The CEO of Maple Leaf Foods, Michael McCain, immediately issued a public apology (no doubt something the company lawyers urged him not to do).

Although the apology may slightly increase the risk that Maple Leaf Foods will be found legally liable for losses suffered as a result of the outbreak, I think it will do a great deal to increase the public’s confidence in Maple Leaf Foods and limit the number of people who will consider suing the company if they haven’t suffered a catastrophic illness or lost a love one.

I expect the apology will also do a great deal to protect the value of Maple Leaf shares in the long run. In fact it appears that the apology is already having a positive effect. Maple Leaf's stock prices rose today.

The value of an apology cannot be underestimated. I posted about this issue a few months ago on my other blog, Halifax Medical Malpractise Lawyer Blog, Doctors: Say “I’m sorry” and Don’t get Sued! The New York Times reported on a study that found that doctors who apologized for their mistakes get sued far less often than doctors who refuse to admit that they have done anything wrong.

This listeria outbreak is truly a tragedy. My sympathies are with all of those who have lost loved ones as a result of this totally preventable illness. Time will tell if Maple Leaf Food’s conduct in not preventing the outbreak will result in the company being held legally liable.

In the mean time, the public needs to educate itself about the risks inherent in our food safety system.

Continue reading "Listeria Outbreak and Lawsuits Highlight Risks/Misunderstandings of Food Safety System" »

Brogan Not Guilty of Impaired Driving Causing Death

Last week Patrick Brogan was found not guilty of criminal negligence and impaired driving causing the death of 6 year old Joshua Penny. Judge Anne Derrick acquitted Mr. Brogan of the criminal charges even though he had already pleaded guilty to impaired driving and the uncontested facts were that Brogan was driving the car that hit and killed Josh Penny.

How Could This Happen?

The decision has caused a great deal of anger and frustration amongst community members in Cape Breton, much of it unfairly directed at Judge Derrick. I have had a number of people ask me basically the same questions about this case:

“Brogan pleaded guilty to impaired driving. Brogan was driving that car that killed Josh Penny. How could he be found not guilty?”

The Burden of Proof

This tragic case is a sad illustration of the differences in the burden of proof required in a criminal prosecution as opposed to a civil lawsuit for compensation for wrongful death.

Accident was "Unavoidable"

In the Brogan case, both the Crown Prosecutor and the defence hired accident reconstruction experts to determine how, exactly, the accident happened. The Crown’s own expert witness testified at Brogan’s trial that Josh Penny veered out in front of Brogan’s vehicle so quickly that it would have been impossible for a sober driver to have reacted fast enough to stop their car in time to avoid hitting the little boy.

In her decision, Judge Derrick states:

“There was a sudden and unpredictable collision with Joshua Penny. An accident reconstruction expert, making responsible and supportable assumptions, arrived at the conclusion that the tragic accident was unavoidable. That opinion, and the other evidence I have reviewed, raises a reasonable doubt that Mr. Brogan’s impairment cause the accident that killed Joshua.”

Read the whole decision here.

I have a great deal of respect for Judge Derrick. She is a woman with an unequalled sense of fairness and respect for the law. It would have been easier (and far more popular) for Judge Derrick to have ruled differently in the Brogan case. Unfortunately, the facts of the case, and the law, dictated that Mr. Brogan be found not guilty.

Burden of Proof in Criminal Cases

In a criminal proceeding the Crown lawyer bears the burden of proving its case beyond reasonable doubt. The easiest way to understand this concept about the burden of proof is to think of a pair of scales. In a criminal case, all of the evidence against the accused is placed on the “guilty” side of the scale.

In order to prove the charges beyond reasonable doubt the Crown lawyer has the burden of tipping the scales all most all the way over to the guilty side.

Burden of Proof in Civil Lawsuits

On the other hand, in a civil claim the plaintiff has the burden of proving his or her claim “on the balance of probabilities”. If you think of the scales again, in a civil claim all of the evidence for the plaintiff is placed on one side of the scale. All of the evidence against the plaintiff (in favour of the defendant) is placed on the other side of the scale.

As long as the scales tip even a little bit, to the side in favour of the plaintiff, then the plaintiff has met the burden of proof on the balance of probabilities.

A Famous Example

That explains why in some circumstances a person may be found not guilty of criminal charges but later found liable, based on the same facts, in a civil suit. The most famous example of this difference in the burden of proof is, of course, O.J. Simpson.

As everyone in the world knows, at his criminal trial O.J. Simpson was found not guilty. In other words, the prosecutors were not able to convince the jury beyond reasonable doubt that O.J. Simpson had murdered his wife, Nicole Simpson and Ron Goldman.

On the other hand, when the Goldman family and Nicole Simpson’s family sued O.J. Simpson, he was found liable for causing their death. In other words, the plaintiffs were able to prove on the balance of probabilities that O.J. Simpson had caused the deaths of Nicole Simpson and Ron Goldman.

Brogan Decision Based on the Law not Emotions

I have had some very vigourous debates over the last week about the Brogan case. When a child dies and the driver admits to being impaired, it just does not seem fair when the driver is found not-guilty of causing the child's death. But based on the evidence, and based on the law (rather than emotions), it appears that based on the facts the law required a finding of not guilty.

If Josh's family sues Brogan the results will almost certainly be different.

What do you think?

Continue reading "Impaired Driver who Killed 6 Year Old Found Not Guilty of Causing Boys Death. " »

"Minor Injury" claims from Nova Scotia Car Accidents

I get the calls all the time: The client had a car accident in Nova Scotia. It wasn't their fault. They have been injured. They have not been able to work for months. But the other driver's insurance company says they have a "Minor Injury". The insurance company says the client is only entitled to $2500.00 for their pain and suffering.

So they call me and ask: "That can't be right, is it? That's just not fair!"

The honest answer is: Yes it isn't fair, but their claim for pain and suffering may be capped at $2500.00.

BUT the insurance company may not have properly assessed the claim, or told the injured victim everything they are entitled to know.

"Minor Injury" Cap on Compensation

In 2003 Nova Scotia passed a law to protect the profits of the insurance industry at the expense of innocent accident victims.

The law caps the amount of compensation that an innocent accident victim can receive for what is typically referred to as compensation for pain and suffering (what lawyers call non-pecuniary damages), for "minor injuries" at a maximum of $2500.00!

In other words, if you have a "minor injury", as defined in the Insurance Act, the most you can receive for your pain and suffering is $2500.00. In many cases the insurance company will offer you less than $2500.00!

Why you may have a "Minor Injury: Reason # 3

Your injury may be considered to be "Minor" if there is no serious impairment as a result of the injury.

No Serious Impairment = Minor Injury

According to the "Minor Injury" legislation, an injury is considered to be "Minor" if it does NOT cause:

"serious impairment of an important bodily function"

What's a Serious Impairment?

It is not the injury that is important, it is the impairment! The insurance company doesn't care how much pain you are in, or how bad your injuries were at the time of the accident. What the insurance company will consider (or perhaps I should say, what the insurance company should consider) is the effect of your injury and how your injury impairs your ability to function in your work or your normal daily activities.

A person can be significantly injured but be left with limited impairment.

For example, most Canadians know of Rick Hansen. Rick sustained a spinal cord injury in a car accident and would never walk again. He was paralyzed from the waist down.

But Rick became a medal winning paralympic athlete and continues to have a far-reaching impact on the world of sport. He chaired the Commission for the Inclusion of Athletes with Disabilities, successful in creating full medal status for Commonwealth Games athletes and was named “Athlete of the Century,” by British Columbia Wheelchair Sports. He was named Canada’s Disabled Athlete of the Year in 1979, 1980 and 1982; and in1983, shared the Lou Marsh Award with Wayne Gretzky, as Canada’s Outstanding Athlete of the Year. Rick has been inducted into Canada’s Sports Hall of Fame, the BC Sports Hall of Fame and the University of British Columbia Athletic Hall of Fame.

In other words, it does not appear that Rick's injury has, at least for him, resulted in a significant impairment of his ability to function and puruse his goals.

On the other hand, a relatively insignificant injury may give rise to a significant impairment of function. A concert violinist who loses the tip of their pinky finger in an accident may not have a serious injury, but it would result in a serious impairment of their ability to function as a violinist.

"So How Can I Tell if I Have A Serious Impairment?"

In assessing whether there has been a serious impairment, the Courts have focused on the effect of the injury on the injured person's usual daily activities or their ability to continue their employment or career path.

If it Affects Your Ability to Work, it may be a Serious Impairment

Any impairment that affects the injured person’s earning capacity or frustrates their career path is usually considered to be serious.

But the impairment does not have to result in an income loss to be considered serious. A court in Ontario, looking at similar legislation to the Nova Scotia law decided that:

…we are of the opinion that the frustration of an injured person’s chosen career path generally should be considered to be a serious matter. One can contemplate a permanent impairment of an important bodily function which might force an injured person into a career path, different from the chosen one, but which turns out to be economically more advantageous. It might not however, give the same personal satisfaction.

So a change in career path that leads to an increase in income may still be considered to be a serious impairment. For example, in one case Newall v. Flora a mom suffered a knee injury which prevented her from being able to be a stay-at-home mother and care for her children. She hired a nanny, which forced her to work full-time to pay for the nanny. Her impairment of bodily function was found to be serious (even though her salary increased from $36,000.00 to $100,000.00 over several years).

"How Do I Prove I Have a Serious Impairment?"

In order to prove that you have a serious impairment you must provide proof that your injury continues to cause "substantial interference" with your "usual daily activities" or your "regular employment".

How do you do that? By having your doctor and occupational therapist carefully document the nature and extent of the ongoing effects of your injuries so that he or she can write a report confirming that you have a "serious impairment" that is "physical in nature" and continues to cause "substantial interference" with your "usual daily activities" or your "regular employment".

I will cover all of these other requirements in future posts. The most important thing to remember is that just because the insurance company says you have a minor injury does mean that they are correct.

The minor injury cap law is complicated and confusing, even to some lawyers. If you or a family member have been injured in a car accident, make sure you get advice from an experienced Nova Scotia car accident claims lawyer.

Related posts:

Why the Insurance Company Says you have a "Minor Injury": Reason #1

Why the Insurance Company says you have a "Minor Injury": Reason #2

Continue reading "Why you may have a "Minor Injury" from your Nova Scotia Car Accident: Reason #3" »

A diet supplement used by bodybuilders called 6-OXO and 1-AD can trigger seizures and blood clots in the brain that can lead to lasting disability according to a warning issued today by Health Canada.

Both 6-OXO and 1-AD are manufactured by ErgoPharm-Proviant Technologies and are popular among amateur and professional bodybuilders.

CTV news reports that Health Canada has received one report of a serious adverse event that has been linked to use of the supplements. According to the report, a man who had no known health problems suffered seizures and blood clots in his brain after using the supplements.

6-OXO is not approved for sale in Canada, but consumers can buy the supplement over the internet or while travelling in the United States.

1-AD contains an anabolic steroid. That means the supplement is a controlled substance in Canada and can only be purchased by prescription and is supposed to be used only under the supervision of a doctor.

If you are using either of these supplements, you should seek advice from a doctor immediately.

On Monday I had the pleasure of golfing in the Brain Injury Association of Nova Scotia's annual charitable golf tournament.

The event went off without a hitch and I wanted to offer my congratulations to BIANS and their volunteers for making the day a great success.

As I mentioned in an earlier post, June is Brain Injury Awareness Month in Nova Scotia.

Brain Injury is one of the leading causes of injury and death in children. As our weather improves (finally) more children are going to be out riding their bikes, scooters and skateboards. Unfortunately, some of them are going to suffer a brain injury as a result of not wearing proper protective gear.

I am posting this public service announcement from the Virginia Emergency medical Services as a reminder for parents to ensure that your kids wear proper safety gear when they are out having fun.

Have a great...and safe...summer!

Continue reading "BIANS Golf Tournament Kicks off Brain Injury Awareness Month" »

Nova Scotia Passes Law to Protect Insurance Company Profits

In 2003 Nova Scotia passed the Automobile Insurance Reform Act (AIRA) to protect the profits of the insurance industry at the expense of innocent accident victims.

"Minor Injury" Cap on Compensation

AIRA caps the amount of compensation that an accident victim can receive for non-pecuniary damages , (what is typically referred to as compensation for pain and suffering), for "minor injuries" at a maximum of $2500.00!

In other words, if you have a "minor injury", as defined by the AIRA law, the most you can receive for your pain and suffering is $2500.00. In many cases the insurance company will offer you less than $2500.00!

Why you may have a "Minor Injury": Reason #2 :

If your injury "resolved" within 12 months of your car accident, it will be considered a "minor injury".

The AIRA law defines a minor injury as any injury that:

...resolves within twelve months following the accident.

What Does Resolves Mean?

Now you and I know what resolves means; it means you are better! If you aren’t better in one year your injury has not “resolved” and you are entitled to more than $2500.00 in compensation. Right?

Wrong! As if things weren’t complicated enough, in an effort to:

Limit the ability of innocent car accident victims to get compensation for their injuries; and

Increase insurance company profits,

the government of Nova Scotia created regulations “defining” what the word “resolves” means.

According to the Minor Injury cap law, "resolves" means...

…does not cause or ceases to cause a serious impairment of an important bodily function which results from a continuing injury of a physical nature to produce substantial interference with the person’s ability to perform their usual daily activities or their regular employment…

In other words, if you are in a car accident and spend 6 months in a body cast and then 5 1/2 months in painful rehabilitation, but you pretty much fully recover within a year, you may be considered to have a minor injury. Your claim for pain and suffering may be capped at $2500.00.

"How Do I Prove My Injury Hasn't Resolved?"

In order to prove that you do NOT have a minor injury you must provide proof that your injury did not "resolve" within 12 months. How do you do that? By having your doctor carefully document the nature and extent of the ongoing effects of your injuries so that he or she can write a report confirming that you have a "serious impairment" that is "physical in nature" and continues to cause "substantial interference" with your "usual daily activities" or your "regular employment".

I will cover all of these requirements in future posts. The most important thing to remember is that just because the insurance company says you have a minor injury does mean that they are correct.

The minor injury cap law is complicated and confusing, even to some lawyers. If you or a family member have been injured in a car accident, make sure you get advice from an experienced Nova Scotia car accident claims lawyer.

Related posts:

Why the Insurance Company Says you have a "Minor Injury": Reason #1

Continue reading "Why the Insurance Company says you have a "Minor Injury": Reason #2" »

Nova Scotia Government Passes Law to Protect Insurance Company Profits

In 2003 Nova Scotia passed the Automobile Insurance Reform Act (AIRA) to protect the profits of the insurance industry at the expense of innocent accident victims.

"Minor Injury" Cap on Compensation

AIRA limits (or caps) the amount of damages that an accident victim can receive for non-pecuniary damages , what is typically referred to as compensation for pain and suffering, for "minor injuries" to a maximum of $2500.00!

In other words, if you have a minor injury, as defined by the AIRA law, the most compensation you can receive for your pain and suffering is $2500.00.

There are many reasons why the insurance company may claim that you have a minor injury.

Reason # 1

Your injury isn't "permanent"

The AIRA law defines a minor injury as every injury that does NOT result in a:

...permanent serious impairment of an important bodily function...

So the first reason the insurance company may say that you have a "minor injury" is because your injury isn't permanent.

That covers a lot of injuries. Think about it: bruises go away, torn muscles repair themselves, broken bones heal. There are few injuries that last forever.

Does Permanent Mean Forever?

In some cases (amputations) it may be obvious that the injury will last forever. But for most injuries the only way to know for sure that your injury is/was permanent is to wait until you die. If you still had the injury when you died, then the injury was truly permanent.

So does that mean you have to wait until you die before you can prove your injury is permanent?

Fortunately that isn't the case.

Various court decisions have considered what the definition of the word permanent means when it comes to personal injury claims.

A victims injuries will be considered to be permanent where there is a “substantial possibility” that the injury will continue into the future: Skinner v. Goulet.

"Permanent" means lasting into the indefinite future without any end limit: Bos v. James

How Do I Prove My Injury Is Permanent?

So the first thing you have to do to prove that you do NOT have a minor injury if provide proof that your injury is "permanent". How do you do that? By having your doctor carefully document the nature and extent of your injuries so that he or she can write a report confirming that there is a "substantial possibility" that your injury will continue into the "indefinite future" without any certain end limit.

There are a number of other reasons that the insurance company may say you have a minor injury, and claim that your compensation should be capped at a maximum of $2500.00. I will cover them all in future posts.

Continue reading "Why the Insurance Company Says you have a "Minor Injury": Reason #1" »

I posted yesterday about the concerns of guards and inmates over asbestos found in the Cape Breton Correctional Facility.

When the announcement was made this week about the presence of asbestos in the jail, Justice Minister Cecil Clarke said all proper procedures had been followed.

"When issues come forward we respond to those and follow the prescribed procedures and policies in place and that's been done," said Clarke.

But yesterday afternoon the union that represents the guards released a document which indicates the government had been aware of asbestos insulation in some provincial institutions as early as 1988!

"It clearly stated that there was asbestos within the heating system of the correctional facility, particularly around the elbows and joints, which are the areas of concern at present day," said union local president Jim Gosse.

The province's code of practice on "Managing Asbestos in Buildings" requires that employees be notified immediately once asbestos is detected in a building.

The Canadian Press has reported that the guards' union maintains that it wasn't informed about the asbestos until it requested a meeting with jail officials on May 14. The meeting was held the next day.

The province knew about the asbestos in the Cape Breton Correctional Facility in 1988. The province's code of practice requires that employees be notified immediately about the presence of asbestos. The guards were not notified until May 14, 2008. Twenty years later!

What were they waiting for?

Asbestos found in the Cape Breton Correctional Facility may have injured the guards and inmates that were exposed to the dangerous cancer causing mineral, according to the union that represents Nova Scotia's jail guards.

The province of Nova Scotia has released air quality test results at the prison which show:

"The reported values were well below the acceptable criteria of 0.1 fibres per cubic centimetre"

Guards and inmates are concerned because exposure to asbestos can cause mesothelioma a deadly form of cancer.

The problem, according to the National Cancer Institute, is that:

"Symptoms of mesothelioma may not appear until 30 to 50 years after exposure to asbestos."

Exposure to asbestos also increases the risk of lung cancer, asbestosis (a noncancerous, chronic lung ailment), and other cancers, such as those of the larynx and kidney.

The province says that exposure levels are "acceptable". The problem with this statement is that there is no scientific evidence to prove that asbestos exposure is safe at any level!

You have to ask yourself what the reaction would be if Nova Scotia's M.L.A.'s found out that there was asbestos in the air in the Legislature. Would they consider any level of asbestos exposure to be "acceptable"?

What do you think?

...since I have been preparing for a month long jury trial that starts next week on behalf of a client who suffered a minor traumatic brain injury (MTBI). I have found the more I prepare, the luckier I am.

MTBI claims are among the most difficult of personal injury claims to prove. By definition, imaging studies (MRI, CT scan, X-ray) are normal. Often there is no loss of consciousness and sometimes the victim has not even suffered a blow to the head.

The effects of MTBI are subtle. It can be difficult to convince a jury that someone who looks so "normal" has suffered a debilitating injury.

If you are looking for more information about MTBI claims, I highly recommend the Traumatic Brain Injury blog by my collegue Bruce Stern. You can take a look here.

You can also find more information at the Brain Injury Association of Canada.

If you are looking for a Halifax personal injury lawyer you can check out our website.

Injury is the leading cause of death and disability among children and adolescents in
Canada. A new report from the Canadian Institute for Health Information indicates that the number of children injured each year in Canada has declined steadily over recent years.

The rate of child injury in 2005–2006 was 36.7 per 10,000 persons, compared to 40.6 per 10,000 persons, in 2001–2002.

The authors of report suggest that the decrease in pediatric injuries could be due to a variety of
factors, including:

Improved injury-prevention programs;
Changing practice patterns with changing hospital admission criteria;
Administrative changes; and
Legislation designed to target child safety concerns.

The leading cause of injury was unintentional falls (37%) with double the number of injuries of the second leading cause of injury, car accidents (18%).

It is perhaps not surprising that car accidents resulted in more serious injuries. The study reports that falls resulted in 24,433 hospital days with an average of 2.3 days required for treatment. Whereas car accidents resulted in 32,118 hospital days with an average hospital stay of 6 days required for treatment.

The leading cause of injury that resulted in death among children and adolescents under age 20 years was car accidents (55.5%).

While the trend towards fewer injuries is encouraging, more study is needed to identify the specific reasons for the decrease so that governments and hospitals can determine how to most effectively spend limited health care and trauma prevention dollars.

You can read the whole report here.

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